VHCC cases jeopardised by fee cuts
Topics: The Bar
Multi-million-pound fraud trials are being put in jeopardy by the Ministry of Justice’s cuts to advocates’ fees, the Gazette has learned.
A £200m conspiracy trial at Southwark Crown Court involving alleged ‘rogue bankers’ and a £100m film financing case listed at Birmingham Crown Court face being derailed because of a lack of counsel. These are in addition to a £4.5m fraud trial disrupted at Southwark, reported by the Gazette last week.
Despite contacting hundreds of barristers, including at the Public Defender Service (PDS) and the Northern Irish and Scottish bars, solicitors have been unable to find advocates willing to accept legal aid briefs in the most serious and complex criminal cases since the MoJ implemented 30% fee cuts in December.
The ministry is seeking to fill the gap by increasing the number of advocates employed by the PDS, which currently employs one QC and seven solicitor-advocates. Two more silks will start this month.
The Legal Aid Agency (LAA) has sought to downgrade some cases from very high cost cases (VHCCs) to graduated fee cases in a bid to secure advocates, but without success. The LAA denies downgrading the cases because of the boycott, claiming the two cases in question no longer meet the VHCC criteria.
If advocates cannot be found, the courts will have to determine whether the prosecutions should be stayed or the cases should proceed with publicly funded defendants unrepresented.
Ed Smyth, an associate at London firm Sonn Macmillan Walker, who represents defendants in two of the cases, said: ‘It’s in nobody’s interests that the trials go ahead with unrepresented defendants.’
Smyth said: ‘It appears to be an entirely false economy for serious criminal allegations to go unprosecuted simply because the powers that be refuse counsel a sensible fee rate.’
Vice-chairman of the Criminal Bar Association Tony Cross QC said: ‘The CBA warned government that barristers would not do VHCCs at the reduced rates. They didn’t believe us. They do now, which is why their officials are scurrying around trying to find lawyers to fill the void.’
Cross said the result will be that trials do not proceed and justice will not be done. He added: ‘It’s ironic that while the MoJ claim their coffers are empty, they start expanding a failed and flawed PDS.’
An MoJ spokeswoman said: ‘In the current economic climate we could not continue to sustain paying advocates at the old rate but believe that, even after the fee changes, advocates continue to be generously remunerated.’
She said the PDS is recruiting a ‘small number’ of advocates as part of continuous expansion, adding: ‘The LAA is confident of recruiting barristers capable of undertaking VHCC cases. Representation in future VHCC cases could be provided by advocates joining the PDS.’